BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;
AND IN THE MATTER OF the complaints of Michael McKinnon alleging discrimination in employment on the basis of race, ancestry, ethnic origin and harassment by Her Majesty the Queen in Right of Ontario, Ministry of Correctional Services, Frank Geswaldo, George Simpson, P. James and Jim Hume.
BETWEEN:
Ontario Human Rights Commission
- and-
Michael McKinnon
Complainant
– and –
Her Majesty the Queen in Right of Ontario, Ministry of Correctional Services,
and Frank Geswaldo, George Simpson, P. James and Jim Hume.
Respondents
INTERIM DECISION
Adjudicator: H. Albert Hubbard
Board File No.: BI-0115 and BI-0033-95
Decision No.: 01-026-I
Board of Inquiry (Human Rights Code)
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INTRODUCTION
My decision herein of April 28, 1998, contained a series of orders intended to compensate the Complainant and to eradicate the poisoned environment at his place of employment, the Metro Toronto East Detention Centre (“the Centre”). I remained seized of these matters pending the full implementation of those orders, and when this hearing was reconvened on March 23, 1999, outstanding financial issues regarding those orders were settled. However, it was submitted by counsel for the Commission and for the Respondents that I had no jurisdiction to deal with the Complainant’s allegations of post-decision harassment, reprisal and discrimination. In my interim decision of April 20, 1999, I concluded that I had such jurisdiction and, following the dismissal by the Divisional Court of an application for judicial review of that decision, the hearing resumed on June 20, 2001. It was then indicated that evidence of such allegations would be led to establish the failure of the Respondent Ministry of Correctional Services (“the Ministry”) to take appropriate measures to cure the “poisoned workplace atmosphere” at the Centre, regarding which alleged failure submissions going to remedy would be made. Counsel to the Commission subsequently declared her intention to call Dr. Ralph Agard to give expert evidence on effecting systemic change in racially poisoned work environments. Counsel for the Respondents objected to his appearance as a witness in these proceedings for reasons relating to “confidentiality” and possible bias arising from his having been engaged by the consulting firm of Devlin & Associates in relation to its agreements with the Ministry to prepare both “a comprehensive review that would result in recommendations for changes and improvements which will address critical issues relating to workplace discrimination and harassment within the Ministries” and an evaluation of the Ministry’s “Systemic Change Training Initiative”.
In the course of my interim decision of October 11, 2001, dismissing the Respondents’ motion to disqualify Dr. Agard as an expert witness in this proceeding, it is pointed out (at page 7) that:
Counsel for the Commission indicated that Dr. Agard’s expert evidence will simply amplify and explain reports prepared by him for Devlin at the behest of the Ministry, some of which have already been entered as exhibits in this proceeding.
The “reports” in question are contained in a “draft” document entitled “A Review of the WDHP Policy Implementation At the Ministry of Correctional Services Conducted By: Devlin and Associates Canada, August 23, 2001." (Exhibit 92.) That document has been superceded by a final report (not yet entered as an exhibit) entitled “Devlin and Associates Canada WDHP Report Ministry of Correctional Services September, 2001."
The present interim decision relates to a request addressed to the Deputy Registrar (Acting) of the Board of Inquiry on November 2, 2001, by Mr. Brian Scott, Senior Investigator, Independent Investigations Unit, Ministry of Correctional Services, that he “be made an intervener (sic) in these proceedings”. His concern is that as a result of the October 11^th^ decision:
... Ralph Agard is going to be called as an expert witness so that he may “amplify and explain reports prepared by him.” One of the reports he will provide evidence on ... recommends, among other things, the immediate abolition of the Independent Investigations Unit as the mechanism by which the Ministry of Correctional Services investigates complaints of workplace discrimination and harassment. The possibility now exists that the Board may order the Ministry to implement the recommendations made in the report. Effectively, the Board could order that my employment end.
The Agard report is a deeply flawed document that inaccurately and unfairly portrays the work I do at the Independent Investigations Unit. The recommendations contained in the report, including the recommendations to abolish the Independent Investigations Unit, are spurious and without foundation. Given that the outcome of these proceedings may substantially affect my rights as an employee, I respectfully request that I be made an intervener (sic) in these proceedings so that I may cross-examine witnesses and present argument to the Board with respect to the Agard report.
Copies of Mr. Scott’s letter were provided to the parties who were given a deadline by which to furnish their responses to the Board and to each other, Mr. Scott being allowed an extra day to reply thereto. While counsel for the Respondents stated that it does not oppose his application she noted that “the Ministry has on a number of occasions expressed its concern with respect to the broadening scope of the hearing, which ... may be further expanded should Mr. Scott be allowed an opportunity to participate or intervene in the hearing.” For reasons with which I entirely agree, counsel for the Commission and for the Complainant are of the view that there is no basis upon which Mr. Scott should be permitted to intervene.
LEGAL ANALYSIS
It is well established that there are two kinds of possible intervention at a Board hearing: a person may either be added as a party with full participatory rights or made a friend of the court with participatory rights determined by the Board in the exercise of its power to control its own proceedings: Sinclair v. Peel Non-Profit Housing Corp. (No.2) (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342; Leshner v. Ontario (No. 1) (1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175; Findlay v. Mike’s Smoke and Gifts (No. 2) (1993, 1993 CanLII 16454 (ON HRT), 21 C.H.R.R. D/15; Christian v. Northwestern General Hospital (No. 1) (1993), 1993 CanLII 16507 (ON HRT), 20 C.H.R.R. D/487; Jeppesen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1; Ontario Human Rights Commission and Odell et al v. The Toronto Transit Commission (Odell v Toronto Transit Commission [2001] O.H.R.B.I.D. No.16.
Who may be added as a party to an Ontario human rights proceeding is governed by section 39(2) and (3) of the Human Rights Code, R.S.O., c.H.19, as amended (“the Code”). There is neither allegation nor appearance of an infringement by Mr. Scott of the Complainant’s rights under the Code, nor (regardless of the state of his knowledge in that respect) do I have reason to think that he was in a position to penalize or prevent such conduct. Thus, Mr. Scott’s submission reveals no basis upon which he might intervene as a party to this proceeding pursuant to those provisions which are as follows:
Section 39(2) The parties to a proceeding before the board of inquiry are,
(a) the Commission, which shall have the carriage of the complaint;
(b) the complainant;
(c) any person who the Commission alleges has infringed the right;
(d) any person appearing to the board of inquiry to have infringed the right;
(e) where the complaint is of alleged conduct constituting harassment under subsection 2 (2) or subsection 5 (2) or of alleged conduct under section 7, any person who, in the opinion of the board, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.
(3) A party may be added by the board of inquiry under clause (2) (d) or clause (2) (e) at any stage of the proceeding upon such terms as the board considers proper.
Nevertheless, its own Rules of Practice provide for the possibility of intervenors appearing before the Board. Those Rules provide that:
Persons who are not parties to a proceeding but who wish to participate shall make a written request to the Board setting out their interest in the matter, the status and degree of participation or intervention sought, and shall file their requests with the Board as soon as possible after they become aware of the proceeding [or, presumably, of their interest in the matter].
A person who requests the right to participate or intervene in a proceeding shall serve a copy of the request on the Board, all parties and any any other person(s) the Board considers appropriate and shall file a Statement of Service (Form 2) with the Board.
The right of persons to participate or intervene may be full or partial, may relate to all or part of the proceeding, and may be limited to written submissions as the panel considers appropriate.
The above-cited jurisprudence indicates that in the exercise of its discretion to permit a person to intervene as amicus curiae the Board must have particular regard as to whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding, whether the applicant has a significant interest in the issue on which intervention is sought, and whether he or she is likely to provide otherwise unavailable assistance to the Board. While Mr. Scott has a significant personal interest in the possibility that the Independent Investigations Unit of the Ministry may be abolished as a consequence of the eventual decision in this matter, that interest does not carry such public policy significance as to warrant an intervention by him which, I am convinced, would unduly delay the proceeding while providing no assistance to the Board that it will not obtain from the witnesses called by the parties.
As it happens, Mr. Scott’s personal interest in the security of his employment coincides with the Ministry’s broader policy view of the matter as indicated in the following paragraph of the submission made by counsel for the Respondents regarding his application:
The Ministry does not support the report’s recommendation that a roster of external investigators be established to investigate WDHP complaints, and we intend to call a number of witnesses who we anticipate will give evidence as to the Ministry’s concerns with respect to the report’s methodology, and certain of the findings and recommendations made in the report. [Thus,] ... it appears that Mr. Scott’s interest as a Ministry employee at the Independent Investigations Unit is represented by the Ministry ...
While I leave it entirely to Respondents’ counsel to decide whether or not to call Mr. Scott as a witness in these proceedings, given his position as Senior Investigator with the Independent Investigations Unit and his assertion that the recommendations in the “Devlin Report” (whether prepared in whole or in part by Dr. Agard) are based on a “deeply flawed document that inaccurately and unfairly portrays the Independent Investigations Unit”, I would encourage her to do so.
DECISION
For the above reasons, Mr. Scott’s application to intervene in this proceeding is denied.
Dated at Toronto this 15^th^ day of November, 2001
“H. A. Hubbard”
H. A. Hubbard
Chairperson